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How often does a U.S. trial judge get to decide a Spanish case over artwork painted by the French impressionist Camille Pissarro in 1897?
Once, unless of course the case is remanded. That's what is happening in the case of Cassirer v. Thyssen-Bornemisza Collection Foundation.
The U.S. Ninth Circuit Court of Appeals has reversed and remanded the case to find out whether a Spanish museum lawfully acquired the artwork from the plaintiffs' great grandmother. The case turned, in part, on one word.
In 1939 Germany, Lilly Neubauer was forced to sell the painting for $360 to a Berlin art dealer. Neubauer sold it because otherwise she would not have been allowed to leave Germany, a strategy history has called the "Aryanization" of the property of German Jews.
After the war, Neubauer made a claim under military law that allowed victims to seek restitution of their property. A U.S. Court of Restitution Appeals confirmed that she owned the artwork, and she later agreed to a settlement because the painting was lost during the war.
Unbeknownst to Neubauer and her family, the Pissarro was actually on the move. It went through several parties, lastly to steel Baron Hans Heinrich Thyssen -Bornemisza who sold his collection for $350 million to a Spanish museum in 1993.
In 2000, Neubauer's grandchild Claude Cassirer learned of the painting. He filed a petition in Spain for its return, and that having failed, he sued in the U.S. Central District of California. The issue was whether Spain was an "encubridor."
The trial judge granted a summary judgment for the museum, concluding that it had acquired title under Spanish law. Among other reasons, the court said Neubaurer had waived her rights in the settlement agreement.
On appeal, the Ninth Circuit reversed because there were triable issues of fact, including whether the museum knew the artwork was stolen. It could be an "encubridor" under the Spanish Civil Code.
"An 'encubridor' within the meaning of Article 1956 can include someone who, with knowledge that the goods had been stolen from the rightful owner, received stolen goods for his personal benefit," the appeals court said.
The panel noted that the Baron's collection was sold for far below its actual value. Its estimated value is between $1 billion and $2 billion.